The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Weighted fairness with MCR guarantee and a general-purpose explicit rate allocation algorithm for ATM ABR service

In this paper, weighted fair rate allocation for ATM available bit rate (ABR) service is discussed with the concern of the minimum cell rate (MCR). Weighted fairness with MCR guarantee has been discussed recently in the literature. In those studies, each ABR virtual connection (VC) is first allocated its MCR, then the remaining available bandwidth is further shared among ABR VCs according to their weights. For the weighted fairness defined in this paper, the bandwidth is first allocated according to each VC's weight; if a VC's weighted share is less than its MCR, it should be allocated its MCR instead of the weighted share. This weighted fairness with MCR guarantee is referred to as extended weighted (EXW) fairness. Certain theoretical issues related to EXW, such as its global solution and bottleneck structure, are first discussed in the paper. A distributed explicit rate allocation algorithm is then proposed to achieve EXW fairness in ATM networks. The algorithm is a general-purpose explicit rate algorithm in the sense that it can realise almost all the fairness principles proposed for ABR so far whilst only minor modifications may be needed.

A general-purpose simulator for train operations

Computer simulation has been widely accepted as an essential tool for the analysis of many engineering systems. It is nowadays perceived to be the most readily available and feasible means of evaluating operations in real railway systems. Based on practical experience and theoretical models developed in various applications, this paper describes the design of a general-purpose simulation system for train operations. Its prime objective is to provide a single comprehensive computer-aided engineering tool for most studies on railway operations so that various aspects of the railway systems with different operation characteristics can be investigated and analysed in depth. This system consists of three levels of simulation. The first is a single-train simulator calculating the running time of a train between specific points under different track geometry and traction conditions. The second is a dual-train simulator which is to find the minimum headway between two trains under different movement constraints, such as signalling systems. The third is a whole-system multi-train simulator which carries out process simulation of the real operation of a railway system according to a practical or planned train schedule or headway; and produces an overall evaluation of system performance.

Rights versus reality : the difficulty of providing 'access to English' in Queensland Courts

This report was developed out of a Legal Practitioner on Trust Account Fund grant from the Department of Justice and Attorney-General in Queensland, to review the Aboriginal English in the Courts Handbook. Judges, Magistrates, barristers and court staff were interviewed about the Handbook. The findings extend beyond Aboriginal English into access to English in Queensland Courts. Recommendations are made about language difficulties faced by witnessed and the ability to the courts to respond to them.

Optimism about safety and group-serving interpretations of safety among pedestrians and cyclists in relation to road use in general and under low light conditions

Drivers are known to be optimistic about their risk of crash involvement, believing that they are less likely to be involved in a crash than other drivers. However, little comparative research has been conducted among other road users. In addition, optimism about crash risk is conceptualised as applying only to an individual’s assessment of his or her personal risk of crash involvement. The possibility that the self-serving nature of optimism about safety might be generalised to the group-level as a cyclist or a pedestrian, i.e., becoming group-serving rather than self-serving, has been overlooked in relation to road safety. This study analysed a subset of data collected as part of a larger research project on the visibility of pedestrians, cyclists and road workers, focusing on a set of questionnaire items administered to 406 pedestrians, 838 cyclists and 622 drivers. The items related to safety in various scenarios involving drivers, pedestrians and cyclists, allowing predictions to be derived about group differences in agreement with items based on the assumption that the results would exhibit group-serving bias. Analysis of the responses indicated that specific hypotheses about group-serving interpretations of safety and responsibility were supported in 22 of the 26 comparisons. When the nine comparisons relevant to low lighting conditions were considered separately, seven were found to be supported. The findings of the research have implications for public education and for the likely acceptance of messages which are inconsistent with current assumptions and expectations of pedestrians and cyclists. They also suggest that research into group-serving interpretations of safety, even for temporary roles rather than enduring groups, could be fruitful. Further, there is an implication that gains in safety can be made by better educating road users about the limitations of their visibility and the ramifications of this for their own road safety, particularly in low light.

Interest from Tertiary Educated Persons in Fostering Children with Higher Care needs under a Professional (Paid) Model Compared with General Foster Care

The number of Australian children requiring foster care due to abuse and neglect is increasing at a faster rate than suitable carers can be recruited. Currently increased numbers of foster children are presenting with higher care needs. Evidence suggests carers with a higher education could contribute to placement stability and ultimately provide more positive outcomes for this group of children. This paper explores the level of interest by tertiary educated persons toward a model of fostering for children with higher needs. Using a descriptive survey methodology, a convenience sample of 644 university undergraduate and postgraduate students within faculties of health sciences, and education, arts and social sciences was employed. Psychology students in the 17-26 year old age group showed greatest interest in a professional foster care model and this was statistically significant (p=0.002 955 CI .000-.010) when compared to other health professionals and other age groups. Education students held the highest interest in general fostering although not statistically significant. When these survey results were extrapolated to the total number of health professionals in Australia there could be 8,385 potential recruits for a model professional foster care. Focused campaigns are required to source professional as recruits to fostering with the benefit of servicing the placement needs of higher care needs children and contributing to general foster care resources.

Who are the real “first offenders”?

Drink driving causes more fatal crashes than any other single factor on Australian roads, with a third of crashes having alcohol as a contributing factor. In recent years there has been a plateau in the numbers of drink drivers apprehended by RBT, and around 12% of the general population in self report surveys admit to drinking and driving. There is limited information about the first offender group, particularly the subgroup of these offenders who admit to prior drink driving, the offence therefore being the “first time caught”. This research focuses on the differences between those who report drink driving prior to apprehension for the offence and those who don’t. Methods: 201 first time drink driving offenders were interviewed at the time of their court appearance. Information was collected on socio-demographic variables, driving behaviour, method of apprehension, offence information, alcohol use and self reported previous drink driving. Results: 78% of respondents reported that they had driven over the legal alcohol limit in the 6 months prior to the offence. Analyses revealed that those offenders who had driven over the limit previously without being caught were more likely to be younger and have an issue with risky drinking. When all variables were taken into account in a multivariate model using logistic regression, only risky drinking emerged as significantly related to past drink driving. High risk drinkers were 4.8 times more likely to report having driven over the limit without being apprehended in the previous 6 months. Conclusion: The majority of first offenders are those who are “first time apprehended” rather than “first time drink drivers”. Having an understanding of the differences between these groups may alter the focus of educational or rehabilitation countermeasures. This research is part of a larger project aiming to target first time apprehended offenders for tailored intervention.

An analytical method to solve a general class of nonlinear reactive transport models

Three recent papers published in Chemical Engineering Journal studied the solution of a model of diffusion and nonlinear reaction using three different methods. Two of these studies obtained series solutions using specialized mathematical methods, known as the Adomian decomposition method and the homotopy analysis method. Subsequently it was shown that the solution of the same particular model could be written in terms of a transcendental function called Gauss’ hypergeometric function. These three previous approaches focused on one particular reactive transport model. This particular model ignored advective transport and considered one specific reaction term only. Here we generalize these previous approaches and develop an exact analytical solution for a general class of steady state reactive transport models that incorporate (i) combined advective and diffusive transport, and (ii) any sufficiently differentiable reaction term R(C). The new solution is a convergent Maclaurin series. The Maclaurin series solution can be derived without any specialized mathematical methods nor does it necessarily involve the computation of any transcendental function. Applying the Maclaurin series solution to certain case studies shows that the previously published solutions are particular cases of the more general solution outlined here. We also demonstrate the accuracy of the Maclaurin series solution by comparing with numerical solutions for particular cases.

Body-site distribution of skin cancer, pre-malignant and common benign pigmented lesions excised in general practice

Background Concern about skin cancer is a common reason for people from predominantly fair-skinned populations to present to primary care doctors. Objectives To examine the frequency and body-site distribution of malignant, pre-malignant and benign pigmented skin lesions excised in primary care. Methods This prospective study conducted in Queensland, Australia, included 154 primary care doctors. For all excised or biopsied lesions, doctors recorded the patient's age and sex, body site, level of patient pressure to excise, and the clinical diagnosis. Histological confirmation was obtained through pathology laboratories. Results Of 9650 skin lesions, 57·7% were excised in males and 75·0% excised in patients ≥50years. The most common diagnoses were basal cell carcinoma (BCC) (35·1%) and squamous cell carcinoma (SCC) (19·7%). Compared with the whole body, the highest densities for SCC, BCC and actinic keratoses were observed on chronically sun-exposed areas of the body including the face in males and females, the scalp and ears in males, and the hands in females. The density of BCC was also high on intermittently or rarely exposed body sites. Females, younger patients and patients with melanocytic naevi were significantly more likely to exert moderate/high levels of pressure on the doctor to excise. Conclusions More than half the excised lesions were skin cancer, which mostly occurred on the more chronically sun-exposed areas of the body. Information on the type and body-site distribution of skin lesions can aid in the diagnosis and planned management of skin cancer and other skin lesions commonly presented in primary care.

A matter of approval

A contract for the sale of a mixed farming property fronting the Murrumbidgee River provided the basis for a dispute that recently found its way to the High Court. The decision is Park v Brothers [2005] HCA 73. Although largely concerned with appellate court practice and procedure, the decision will also be of interest to those practising in property law and general contract law.

Queensland Court of Appeal opines on the meaning of 'material prejudice'

The decision of Wilson J in Wilson v Mirvac Queensland Pty Ltd was the subject of an article in an earlier edition of this journal. At that time, it was foreshadowed that the decision was to be taken on appeal. The decision of the Court of Appeal in Mirvac Queensland Pty Ltd v Wilson is considered in this article.